Supreme Court ruling forces prostitution policy on Harper for 2014

Bruce Cheadle

The Supreme Court's decision on Friday, Dec. 20, 2013 striking down several of Canada's prostitution laws doesn't mean the Harper government will decriminalize sex for cash. Justice Minister Peter MacKay says the government will be exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution.

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December 21, 2013 - 7:34 PM

OTTAWA - Call it the world's oldest legislative headache.

A Conservative government that hoped to restore its fortunes in 2014 by talking about pipelines, international trade and victims of crime now will have to deal with the world's oldest profession.

The Supreme Court of Canada effectively gutted Canada's prostitution laws by finding this week that legislation against street soliciting, living on the avails and keeping a brothel was unconstitutional.

The court gave Parliament one year to come up with a new legislative scheme before the old laws are unenforceable.

While sex workers cheered at the Supreme Court in the hopes the unanimous court judgment ultimately leads to the decriminalization of prostitution, there seems little prospect of that under a government led by Prime Minister Stephen Harper.

"We view prostitution as bad for society and we view its effects as particularly harmful for our communities and women, and particularly for vulnerable women, and we will continue to oppose prostitution in Canada," Harper said in March 2012 after the Ontario Court of Appeal set in motion Friday's decision by striking down parts of the federal law.

The prime minister has steered clear of social conservative lightning rods during his eight years in power, allowing a free parliamentary vote that affirmed same-sex marriage in 2006 and firmly opposing any re-opening of the abortion debate, despite repeated efforts from within his own Conservative caucus.

It's worth noting that for same-sex marriage and abortion, the courts — not politicians — led the way to the current status quo in Canada.

However allowing federal prostitution laws simply to lapse does not appear to be an option.

Red umbrellas, that are used as a symbol for sex workers rights, are seen in front of a rally at Allan Gardens park to support Toronto sex workers and their rights in Toronto, Friday, Dec. 20, 2013.

Image Credit: THE CANADIAN PRESS/Mark Blinch

Just last month, the Conservative party policy convention in Calgary adopted a resolution stating it "shall develop a Canada-specific plan to target the purchasers of sex and human trafficking markets through criminalizing the purchase of sex as well as any third party attempting to profit from the purchase of sex."

Justice Minister Peter MacKay issued a statement Friday saying the government would be "exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution ..."

Heritage Minister Shelley Glover, a former Winnipeg cop, said she has dealt with sex workers and that "on a personal note, I worry about them and I look forward to our government providing some options to continue to protect them."

"Our objective would be to ensure Canada avoids a situation where vulnerable women are easily exploited and that's our concern," chimed in Social Development Minister Jason Kenney.

All the talk of protecting sex workers came after the court ruled the current laws are unconstitutional because they actively endanger people in the trade.

Both the judgment itself and MacKay's statement in response referred to the complexity of the issue.

If indeed the government is starting from scratch, widespread public consultations and the drafting of new laws is a big challenge for the next 12 months.

Mike Wallace, the Conservative chairman of the House of Commons justice committee, said the only matter currently on the committee agenda for the New Year is clause-by-clause examination of a contraband tobacco bill.

A promised Victim's Bill of Rights is in the pipeline but has not yet been scheduled into the committee agenda.

"I wouldn't be surprised if sometime in the spring there would be some sort of legislation in House, go through second reading, and get to us (at committee) either late spring or early summer," Wallace told The Canadian Press. "It's a possibility, if we move on it."

A woman (requested to withhold her name) holds a sign during a rally at Allan Gardens park to support Toronto sex workers and their rights in Toronto, Friday December 20, 2013.

Image Credit: THE CANADIAN PRESS/Mark Blinch

Under that scenario, legislation could get to the Senate and receive Royal Assent next fall.

Don Hutchinson, vice president of the Evangelical Fellowship of Canada, confirmed his group has already made proposals to the government.

"And yes, there have been conversations with the Justice Department and with others in the government of Canada," Hutchinson said Friday.

The evangelical group is looking at what is called the Nordic model, in which the heaviest criminal sanctions are aimed at pimps and johns, not sex workers. The group shares that perspective with Kim Pate of the Elizabeth Fry Society, among others.

It's not the hidden agenda Harper's harshest critiques have long claimed he harbours, but it's also not an issue that's been at the top of any Conservative election platform.

Finding common ground between tough-on-crime Conservative supporters and longtime government policy critics such as Pate may be the unexpected silver lining in the Supreme Court ruling.

Alan Young, the Osgoode Hall law professor who argued the case at the Supreme Court, said he's no fan of "Stephen Harper's track record on criminal justice issues" — but then added a caveat that Harper himself could probably endorse.

"I would prefer if another prime minister and another party were to look at this issue," said Young. "But you play the cards you've been dealt."

OPINION Editor, This is a busy time of year, but I find it’s also a time of reflection, particularly as January marks the end of my two-year term as Chair and my 10 years serving on the Board of Interior